Ethics Opinions

Opinion 07-01

Summary: In the absence of an effective disclaimer, a lawyer who receives unsolicited information from a prospective client through an e-mail link on a law firm web site must hold the information in confidence even if the lawyer declines the representation.  Whether the lawyer's firm can represent a party adverse to the prospective client depends on whether the lawyer's obligation to preserve the prospective client's confidences will materially limit the firm's ability to represent the adverse party. 

Factual Background: Law Firm maintains a web site that describes the Firm's history and areas of legal expertise.  The web site also includes biographies for each of the Firm's lawyers.  These biographies list the lawyer's educational background, areas of specialization, and recent professional accomplishments.  Adjacent to the biographical information for each lawyer is a link permitting someone viewing the biography to send an e-mail directly to the lawyer.  When a visitor to Law Firm's web site uses the link to send an e-mail, there is no warning or disclaimer regarding the confidentiality of the information conveyed. 

            Using the link provided on the web site, a prospective client, ABC Corporation, sends an e-mail to one of the Firm's lawyers indicating that ABC wishes to retain the lawyer to bring a claim against XYZ Corporation and providing information about the claim.  ABC selected the lawyer in good faith based on the lawyer's qualifications but has had no prior dealings with the lawyer or Law Firm. The lawyer, discovering that other attorneys in the Firm are already representing XYZ in unrelated matters, promptly declined to represent ABC.   

Questions Presented:

            1.         Is the lawyer required to maintain the confidentiality of the information furnished by ABC Corporation, even though the lawyer declined to represent ABC?

            2.         If the lawyer is required to maintain the confidentiality of ABC's information, do the Rules of Professional Conduct prohibit the Law Firm from defending its existing client XYZ Corporation against ABC's claims? 

Discusson: Analysis of a lawyer's duty of confidentiality normally begins with Rule 1.6 of the Rules of Professional Conduct, which governs "confidential information relating to the representation of the client."  To establish an attorney-client relationship under Massachusetts law, the attorney must expressly or impliedly agree to provide the requested legal assistance.  See DeVaux v. American Home Assurance Co., 387 Mass 814, 817-18 (1983).  Since ABC Corporation had no prior contact with the lawyer and the lawyer promptly declined to represent ABC, we may assume that ABC's e-mail did not result in the formation of an attorney-client relationship.    

 

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A duty of confidentiality can, however, arise even if no attorney-client relationship results.  Paragraph [3] of the Scope section of the Massachusetts Rules of Professional Conduct acknowledges this possibility: 

 "…[T]here are some duties, such as that of confidentiality under Rule 1.6, that may attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established." 

Recognition of such a duty is consistent with the principle that communications by a prospective client seeking legal representation may be privileged even if the representation is never undertaken, as long as the prospective client's expectation of confidentiality was reasonable.  See Commonwealth v. O'Brien, 377 Mass. 772, 775 (1979); Neitlich v. Peterson, 15 Mass.App.Ct. 622, 624 (1983); Restatement (Third) of the Law Governing Lawyers, § 71; MBA Ethics Opinions 76-6, 81-1, and 84-3.  

Traditionally, the initial interview between a lawyer and a prospective client has taken place in person or by telephone.  In such settings, the lawyer "agrees to consider" whether to form an attorney-client relationship by participating in the conversation.  Moreover, the lawyer can set the ground rules for the conversation by, for example, asking the prospective client to provide only the information needed for a conflicts check or seeking an agreement that the lawyer would not be disqualified from representing another party as a result of anything learned in the interview.   See ABA Opinion 90-358, Measures to Avoid Disqualification. 

            By contrast, when a prospective client addresses a completely unsolicited e-mail to a lawyer, it is difficult to infer that the lawyer has "agreed to consider" forming an attorney-client relationship.  Moreover, the lawyer has no opportunity to control the flow of information.  As a practical matter, the lawyer must open and read the e-mail--and thus risk being tainted by confidential information from a stranger--simply to find out what the e-mail is about.  A prospective client should not be able to foist a duty of confidentially on an unsuspecting lawyer.   If ABC Corporation had obtained the lawyer's e-mail address from the internet equivalent of a telephone directory, we would have no hesitation in concluding that the lawyer had not "agreed to consider" whether to form an attorney-client relationship.  Accord, ABA Model Rule 1.18, comment [2](one who communicates information to a lawyer unilaterally is not entitled to be treated as a prospective client); See Restatement (Third) of the Law Governing Lawyers, § 15(1)(a)(recognizing a duty of confidentiality when a person "discusses" with a lawyer whether to form an attorney-client relationship). We would also have no hesitation in concluding that ABC Corporation did not have a reasonable expectation that its e-mail communication would be treated confidentially. See Arizona State Bar Ethics Op. 02-04, (potential client who sent unsolicited e-mail to lawyer not entitled to confidentiality).  Absent some invitation to communicate, it is not reasonable to assume that a stranger will keep one's secrets, even if the stranger is a lawyer.   

            The facts of this inquiry fall somewhere between the traditional meeting or phone conference and the unsolicited e-mail.  ABC's e-mail arrived without advance notice to the lawyer.  On the other hand, ABC sent the e-mail by means of a link provided by Law Firm on its  

 

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web site.  Web sites are, among other things, marketing tools.  The typical site is organized so that a prospective client can readily identify the lawyers in the firm who have the expertise to handle a particular matter. The background and qualifications of each lawyer are presented in an attractive light, often stressing the lawyer's skill at solving clients' practical problems.  If a lawyer's qualifications fit the prospective client's needs, a means for immediately communicating with that lawyer has been provided.  A prospective client, visiting Law Firm's website, might reasonably conclude that the Firm and its individual lawyers have implicitly "agreed to consider" whether to form an attorney-client relationship.  Accord, Arizona State Bar Ethics Op. 02-04. 

            Moreover, when an e-mail is sent using a link on a law firm's web site, the firm has an opportunity to set conditions on the flow of information.  Using readily available technology, the firm may require a prospective client to review and "click" his assent to terms of use before using an e-mail link.  Such terms of use might include a provision that any information communicated before the firm agrees to represent the prospective client will not be treated as confidential.  Or the terms of use could provide that receipt of information from a prospective client will not prevent the firm from representing someone else in the matter.  See D. Hricik, To Whom it May Concern:  Using Disclaimers to Avoid Disqualification by Receipt of Unsolicited E-Mail from Prospective Clients, 16 Prof.Law No. 3 1 (2005).  Since Law Firm controls the contents of its web site and since the Firm could have conditioned the use of e-mail links by appropriate disclaimers but failed to do so, we conclude that Rule 1.6 applies and the lawyer must maintain the confidentiality of the information furnished by ABC Corporation. 

            Turning to the second question, whether the Rules of Professional Conduct prohibit Law Firm from representing its client XYZ Corporation against ABC, we note that, if ABC Corporation had been a client of Law Firm, the lawyer who received ABC's e-mail would be disqualified from later representing XYZ Corporation, Mass.R.Prof.C., Rules 1.7 and 1.9(a), and that disqualification would be imputed to the other attorneys in the firm.  Mass.R.Prof.C., Rule 1.10(a). See Bays v. Theran, 418 Mass. 685, 690-94 (1994) (finding attorney-client relationship based on several brief telephone calls and disqualifying firm from representing adversary.)   However, since ABC Corporation has never been a client of Law Firm, neither Rule 1.7(a) concerning direct adversity between current clients nor Rule 1.9(a) concerning adversity to a former client prohibits the representation of XYZ Corporation.  The applicable Rule, we believe, is Rule 1.7(b), which prohibits a lawyer from representing a client if the representation will be materially limited by the lawyer's obligations to a third person.  The critical issue is whether the lawyer's obligation to preserve the confidences of ABC Corporation will materially limit Law Firm's ability to represent XYZ Corporation.  If so, Rule 1.10(a) provides that, "While lawyers are associated in a firm, none of them shall knowingly represent a client when any of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), or 1.9."   

            While ABC Corporation's e-mail should be treated as confidential, see Rule 1.6, comment [5](confidentiality rule applies to "virtually all" information relating to representation), the information that ABC disclosed in the e-mail may have little long-term significance, especially once ABC has made its claim known to XYZ.  See ABA Ethics Formal Op. 90-358 (giving examples of cases where a confidentiality obligation to a prospective client might not  

 

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materially limit a lawyer's ability to represent someone else.)  On the other hand, ABC's e-mail may contain information, such as comments about ABC's motives, tactics, or potential weaknesses in its claim, that has continuing relevance to the prosecution and defense of ABC's claim.  In that case, the obligation of the lawyer who received ABC's e-mail to maintain the confidentiality of its contents would materially limit his ability to represent XYZ, with the result that both the lawyer and the Law Firm would be disqualified. 

            The Committee recognizes that some have advocated a more lenient standard for measuring a lawyer's obligation to prospective clients.  In 2002, the American Bar Association adopted Model Rule of Professional Conduct 1.18, which expressly addresses the obligations of a lawyer to a prospective client.  Under Rule 1.18(c), a lawyer who has received confidential information from a prospective client may not represent an adverse party if the information "could be significantly harmful to [the prospective client] in the matter."  The Restatement has adopted the same position.  Restatement (Third) of the Law Governing Lawyers, § 15(2).  In addition, under both the Model Rules and the Restatement, a representation may still be permissible if the lawyer who received the disqualifying information is timely screened.  Model Rule 1.18(d); Restatement, § 15(2)(a). 

            The Supreme Judicial Court, however, has not adopted Model Rule 1.18.  Moreover, under our current Rules, screening to avoid disqualification is permitted only in limited cases involving a lawyer changing firms.  See Mass.R.Prof.C. 1.10(d).  Whether the somewhat less restrictive test of Model Rule 1.18(c) and the Restatement embodies a better accommodation between the lawyer's responsibilities to clients and prospective clients is a matter of policy for the SJC and not for this Committee. Under the facts of the present inquiry, the Law Firm must decide whether the obligation to preserve the confidentiality of ABC's e-mail will materially limit its ability to represent XYZ.  If it does, Rules 1.7(b) and Rule 1.10(a) prohibit the Firm from undertaking the defense of XYZ.[1] 

 

 

This opinion was approved for publication by the Massachusetts Bar Association's House of Delegates on May 23, 2007.



[1]  As we indicate earlier in this Opinion, the Committee believes that a law firm can avoid disqualification by requiring prospective clients to affirmatively indicate their consent to appropriate terms of use before using an e-mail link provided on the firm's web-site.  For a discussion of such terms, see Hricik, supra at 4-5.

 

 

 

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